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Lightning striking workman

Nothing was said about the accident until June 12 following, when the applicant demanded compensation. The application was denied. Wilkie v. Thomas Forman Co., Mich. Indus. Acc. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at p. 417.

28. Seaman injured by explosion of gun.

The third officer of a steamship was injured by the premature explosion of a gun which had been placed on the deck to be used against robbers, who were in the habit of boarding the ship and stealing therefrom, and it was held that the accident arose out of and in the course of the officer's employment, under the British Compensation Act. Thompson v. Nautilus Steamship Co., The Policyholder, July 10, 1912, p. 553.

29. Lightning striking workman.

A workman whose duty was to clean out the gullets at the side of a road during a storm, to prevent the water flooding the road, was struck by lightning. It was held that the death was not occasioned by accident arising out of the employment. Kelly v. Kerry County Council (1908), 42 Irish L. T. 23; 1 B. W. C. C. 194. But see Andrew v. Failsworth Industrial Soc. (1904), 90 L. T. 611; 6 W. C. C. 11, where a bricklayer on a scaffold, twenty-three feet from the ground, was struck by lightning and it was held that this was an accident. The last-mentioned case was decided by the Court of Appeal of England. The case was not decided squarely on the ground that in all cases where a workman was killed by lightning his dependents would be entitled to compensation. The judgment of the court below was adopted to the effect that this particular workman was in a more than ordinarily dangerous position as to lightning.

It is not enough for a workman to assert that an accident which has caused personal injury to him would not have happened if he had not been in the particular place where it

Drawing inferences from unexplained injuries

occurred. But it must be shown that the accident arose because of something he was doing in the course of his employment, or because it placed him in a position of peculiar danger, and the risk incurred was therefore incidental to his employment. Craske v. Wigan (1909), 100 L. T. 8; 2 B. W. C. C. 35.

30. Drawing inferences from unexplained injuries.

A ship's fireman in the tropics, unused to the work, and working longer hours than usual owing to the ship being shorthanded, disappeared. It was the custom for firemen to come up on deck for fresh air and this man was seen to come on the deck for water shortly before he was last seen in the stokehole. The inference that the accident arose out of the employment was sustained and compensation was awarded to the dependents. Lee v. Stag Line (1912), 5 B. W. C. C. 660.

A ship's cook disappeared unexplainedly at sea. He was last seen in the galley, where there was no possibility of falling overboard. The weather was rough, and he was last seen to go on deck to reach the toilet. The County Court judge inferred that the accident arose out of the employment, but it was held on appeal that there was no evidence to support the inference and compensation was denied. Burwash v. F. Leyland & Co. (1912), 5 B. W. C. C. 663.

An engineer who was employed on board a small steam tug, was last seen asleep in his bunk at 5 A. M. An hour afterward he had disappeared, leaving his working clothes lying at the side of his bunk. The tug was to commence towing at 7 A. M. that morning and steam had been ordered to be got up for that hour. The deck was a place where between five and seven A. M. he was entitled to be. Two days afterward his body, clad in his ordinary sleeping clothes, was found in the water near the place where the tug had been moored on the morning in question. The examining physician testified that the man's death was due to drowning.

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Drawing inferences from unexplained injuries

It appeared in evidence that he was unable to swim, but there was no direct testimony as to how the deceased had met with his death. It was held that the arbitrator was entitled to draw the inference of fact that the workman had accidentally fallen overboard and been drowned, and that the accident arose out of and in the course of the man's employment. Mackinnon v. Miller (1909), 46 Scotch L. R. 299. 2 B. W. C. C. 64.

An engine driver, over sixty years old, was working about the engine at a railway station. He was next seen lying between the engine and the platform with his two legs doubled up, exhibiting signs of agony, and he died a few minutes. later. There was no evidence to show how he got into this position, but there was evidence to show that on at least three previous occasions when the train was at a station, the deceased had collapsed in a faint, and had lain unconscious for some minutes. A few days before the occurrence the deceased was examined by the physician of the company and was presumably passed as physically fit for his position. The County Court judge held that the accident arose out of and in the course of his employment. It was held that there was sufficient evidence to justify the finding. Fennah v. Midland & Great Western Railway of Ireland (1911), 45 Irish L. T. 192; 4 B. W. C. C. 440. In this case the court said: "The judge is entitled to draw an inference, but he cannot arrive at it by guess or conjecture; and the onus is, in the first instance, on the applicant to furnish evidence from which an inference in the applicant's favor can be legitimately drawn."

A train of three cars pushed by an engine overtook another train on the same tracks, and the two trains ran buffer to buffer as if coupled. The brakeman of the rear train tried to get on the front train but slipped between the buffers and was killed. There was no direct evidence as to his reasons for trying to board the front train, but there was evidence that he would shortly have had to alight to shift

Arizona

some points (switches), and that it was much easier to alight from the front than from the rear train, the former having steps while the latter had none. From this the County Court judge drew the inference that the attempt was made in order to alight more easily, and therefore held that the accident arose out of the employment. It was held on appeal that the County Court judge was entitled to draw this inference. Astley v. R. Evans & Co. (1911), 104 L. T. 373; 4 B. W. C. C. 209; affirmed by the House of Lords, R. Evans & Co. v. Astley (1911), 4 B. W. C. C. 319.

While a ship was on the high seas the cook fell overboard and was drowned. The weather was perfectly calm at the time. It was daylight and the ship was steady. There was no evidence to show how the deceased had fallen overboard. It was held that the dependent had failed to discharge the onus upon her of proving that the accident arose out of and in the course of the employment of the deceased, there being no justification for inferring that the accident arose out of the employment because it was admitted that it happened in the course of the employment. Bender v. Owners of Steamship "Zent" (1909), 100 L. T. 639; 2 B. W. C. C. 22. In the last-mentioned case one of the judges stated by way of dictum that if, on a stormy night, one of the watches of the ship was missing, the inference to be drawn would be that the most natural cause of the accident was the increased danger to which the seaman was subjected in the course of his employment, and that therefore the accident arose out of his employment.

ARTICLE D-SPECIFIC PROVISIONS OF VARIOUS ACTS

ARIZONA

While the terms are transposed in the Arizona Act it follows those statutes in which the wording "injury by accident arising out of and in the course of the employment" is found.

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Connecticut

'When, in the course of work *** personal injury by accident arising out of and in the course of such labor, service, or employment, is caused to or suffered by any workman therein, by any risk or failure specified in the second section hereof, then such employer shall be liable," etc. §7, Act of 1912; § 71, Act of 1913.

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Compulsory compensation shall be paid by his employer to any workman *** if in the course of the employment of said employé personal injury thereto from any accident arising out of and in the course of such employment is caused," etc. § 2, Act of 1912; § 66, Act of 1913.

There is nothing in the Arizona Act relieving the employer in case the injury is caused by the wilful misconduct of the employé. As the injury must be caused by accident this would preclude claims where the injury was wilfully self inflicted.

CALIFORNIA

The California Act contains the provision of the British statute on this subject with an additional requirement: "Liability for compensation *** shall *** exist against an employer for personal injury sustained by his employés by accident arising out of and in the course of the employment ***" § 12, (a). "When, at the time of the accident, the employé is performing service growing out of and incidental to his employment and is acting within the course of his employment as such." § 12 (a) (2).

The portion of the Act relating to special defenses provides that compensation shall be awarded "when the injury is approximately caused by accident, either with or without negligence, and is not so caused by the intoxication or the wilful misconduct of the injured employé." § 12 (a) (3).

CONNECTICUT

The word "accident" is omitted from the Connecticut Act, the words being "personal injury sustained by an em

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